The numbers come from a new study by the Center for Economic and Policy Research (CEPR). And they’re large numbers indeed in an economy that’s supposedly moving away from its old industrial base.

It just gets harderThey’re big numbers, too, insofar as older workers experience increasing physical problems doing hard labor. Used to be, people with such jobs just struggled on until retirement. But now, with the retirement age receding to 66, 67 and possibly even 70, retirement as respite is less realistic.

What can you do for your manual laborers?All through their careers, encourage them to further their education. The study points out that 63% of workers without a high school degree hold physically demanding jobs, while just 26% of college grads do. Tuition reimbursement programs and discount arrangements with community colleges are two ways HR can go about this.

• Offer opportunities to train for skilled, desk-based sedentary positions. The CEPR study (see it at www.cepr.net/documents/publications/older-workers-2010-08.pdf) may help you make the point that they won’t always want to be toting that barge and lifting that bale.

The EEOC has a bee in its bonnet about headscarves worn as part of an employee’s religion. And HR people would do well to take heed.

In the latest of several similar lawsuits it has filed, the EEOC sued the retailer Abercrombie & Fitch for rejecting a Muslim applicant who wore a headscarf to her interview. The hiring manager said she didn’t fit the chain’s desired “look.”

Last fall, the EEOC filed a headscarf suit on behalf of a Muslim employee in Oklahoma. And earlier this year, an employer in Alabama paid $50,000 to settle an EEOC suit over its rejection of a Mennonite worker’s headscarf.

A supervisor who called an employee “greedy” for continuing to work at age 70 did the employer no favors. That employer, Kmart, will have to pay $120,000 to settle the EEOC’s age-discrimination lawsuit.

The supervisor, who ran a Kmart store’s pharmacy in Honolulu, allegedly told the employee she was “too old” and “should just retire.”

The supervisor added further ageist comments in a departmental communication book open to other employees. Eventually the employee felt obliged to quit.

Applying policy unevenly among employees will always get you in trouble. For a shipping company in Burnsville, MN, it meant a lawsuit that's proven difficult to shake.

The company fired an African-American employee for allegedly being tardy to work and failing to be available when called to come in. He sued, claiming white employees were given more leeway than he had been. And a federal appeals court said he had a point: He supposedly missed three calls to come to work on the same day, but employees were supposed to receive only one call. And on another day when he was allegedly unavailable, he'd already worked 40 hours in the week and wasn't required to be available.

What do you tell your employees now about health care reform?”
Employees who watched the debate may wonder what the new law will mean specifically for their benefits.
Even if you don’t have all the facts, you need to give them some guidance.
Talking points
Here, from benefits communication specialist Jennifer Benz, is an outline of what you can say:

“The new law is complex. Some things will take effect very quickly but many of the major provisions will not take effect for several years.”

“Our benefits committee (or consultants) and legal experts are working to understand the law and its implications for us. We’ll get a complete update to you ASAP but expect this to take up to X months.”

If your focus is on offering competitive benefits, you might say: “Health care reform will not change our commitment to competitive benefits that support your health and wellness – today and in the future.”

If you focus on a Great Place to Work concept, try: “Health care reform will not change our commitment to be an employer of choice. We remain committed to your health and wellness – today and in the future.”

If you focus on a partnership approach to benefits, try: “Health care reform will not change our commitment to being your partner in health. We remain committed to comprehensive benefits as well as your active role in your health.”

“As always, your benefits require you to be involved to get the most from our plans. While we evaluate the legislation, please do what you can today. If you haven’t already, schedule your annual physical and make sure you and your family are getting the preventive care exams you need.”

Managers at Southwest Airlines fired a flight attendant without considering that his medical condition might qualify as a disability. As a result, Southwest now has to pay $80,000 that a jury awarded the attendant.

The attendant suffered from psoriasis – generally not considered a disability – but also from arthritis linked with the skin condition. When in the throes of an arthritic flareup, which could occur three or four times a month, he found it agonizing to walk.

After the attendant violated the airline’s absence policy, he was fired. But he sued for disability discrimination and won. And an appeals court has just upheld the jury’s back pay award.

Stalled federal legislation does not mean you shouldn't protect your company against sexual orientation discrimination in the workplace

Long-pending federal legislation to outlaw workplace bias against gay and transgendered employees may not pass in 2010 – but should it matter to progressive employers?

Congress-watchers say the Employment Non-Discrimination Act (ENDA) could get through the House this year, but the recent loss by Democrats of a filibuster-proof Senate majority has dimmed prospects there.

Still, there are good reasons for employers to adopt policies discouraging bias against gay or transgendered employees. For one thing, 29 states have laws of this kind. For another, tolerating any type of personal discrimination at work – even if not illegal – sends the wrong signal to employees. Some may feel free to engage in the kind of illegal discrimination that will get your organization in trouble.

“I thought I asked you to have that report on my desk first thing this morning,” Supervisor Nancy Marvin said to Dave Carson.

“I'm sorry,” Dave replied. “When we discussed the report last week, I may have misheard the exact deadline. You know I don’t always hear everything the first time,” he added, pointing to his hearing aid.

Nancy started to respond, but Dave went on. “I'll finish up the report as soon as possible, but we’ve talked before about how I really need oral instructions followed up in writing because of my hearing problem.”

Words challenged

“Don’t try to put the blame for this on me,” Nancy snapped. “How am I supposed to work with you if you can’t hear?”

Dave stared at her for a long moment. “Aren’t you being discriminatory?” he asked.

“Excuse me?” Nancy demanded. She paused. “All right, I’m not going to argue about what you did or didn’t hear. Let’s just take a moment.”

She took a deep breath, then said, more calmly, “The priority is getting this report done today – can you get it to me by noon?"

"Yes," Dave answered. "I'll give it to you by noon."

Nancy proceeded to write a negative evaluation of Dave’s performance and three days later terminated him.

Dave sued the company for disability discrimination and retaliation. Did he win?

Yes, Dave won his lawsuit.

A federal appeals court held that supervisor Nancy retaliated against Dave because he made an informal complaint about her discriminatory comment regarding his disability. Yes, Dave’s short sentence –

“Aren’t you being discriminatory?” – amounted to an informal bias complaint, the court ruled. A complaint doesn’t have to be long or written down.

When the supervisor whipped up a negative evaluation and fired Dave on the heels of this complaint, it pointed to a retaliatory intent, the court noted.

Actions and words speak loudly

The supervisor may or may not have had reason to fire Dave for his work performance, but her bias against his hearing disability came through loud and clear. The supervisor:

• Failed to follow the agreed-upon accommodation by not following up her verbal instructions to Dave in writing.

• Commented disparagingly on his disability.

• Wrote a negative evaluation of him immediately after their argument.

FMLA Pregnancy Discrimination at work

What would you do if top management came to you with a proposed personnel action that you knew to be discriminatory? Would you take it to the mat if necessary?

It’s a ticklish situation. And the fallout can be severe, as illustrated by a recent case in South Dakota.

A dental clinic hired an employee who told her manager days later that she was pregnant. Realizing the woman would be on maternity leave during the busy summer season, the CEO decided to fire her.

The person who handled HR, the business manager, advised the CEO that he couldn’t legally do this. But the exec went ahead anyway.

When the employee sued for pregnancy discrimination, she won $15,000-plus. Even more damaging, she got an appeals court to agree that she should receive punitive damages – which could run as high as six figures.

They knew it was wrong

The court focused on the fact that a decision-maker – the business manager – knew the firing was illegal, but the organization went ahead anyway.

The lesson for HR? Because you know the law, you have a heavy responsibility to make sure others follow it. If you don’t, the consequences could be worse than if you were just plain ignorant.

Healthy employees are engaged employees

Organizations that take wellness seriously also enjoy high employee engagement, a new study claims.

The white paper from a Manpower Inc. subsidiary says employees are eight times more likely to be engaged in their work when employers make wellness a priority. Conversely, the study says, an organization is four times more likely to lose talent if employees see its wellness efforts as inadequate.

It’s not clear that wellness causes engagement. It’s possible good organizations feature both. But the study just might make you want to check your wellness quotient.

One of the biggest shifts in the workplace is happening right now. And it’s workers themselves who are making it happen – not lawmakers, regulators or expensive consultants. As aging boomers approach retirement with their next eggs considerably compromised, they’re redefining the whole concept of retirement. Instead of the party and the gold watch, they want to stay on the job, but cut back on their hours and set their own schedules.

It’s often a win-win, of course. Older employees can maintain their standard of living, while employers gain the benefit of their experience and skills without having to carry a full-time employee on the rolls. But because these arrangements are often ad hoc, few organizations have taken a strategic approach.

For example, a piece in the Dallas Morning News points out that part-time employment could negatively affect an employee’s benefits, including life insurance and long-term disability insurance; pension calculations, which consider average salary over the final years of one’s career; and social security benefits.

Out of my way, Gramps

There are broader strategic questions as well. Will younger workers see older workers who refuse to step aside at age 65 as an impediment to their own advancement? And how do you compensate formerly salaried workers who are now part time? Do you pay them by the hour? Are they eligible for overtime if they put in longer hours?

Perhaps most important, what role should “phased retirees” play in the organization? Do you use them like other part-timers, to fill in during slow times? Or is there a better use of their talent and experience – for example, should they have a formal role in mentoring and developing younger workers?

These workers can be a tremendous asset to their organizations. Now’s the time for HR to begin thinking about how to make the most of them.

In the previous post we discussed how ill-thought-out job descriptions can come back to haunt you. Here's a story about an employment law attorney who violated her own "minimum requirements" standard and almost got sued.

We all write job descriptions and know how important they are. But how much importance do we give to the section on "minimum qualifications"? Not enough. That's certainly what happened to an employment law attorney we know who received a resume from an exceptional person who did not meet the minimum qualifications the attorney had written herself for the job.

The candidate was from a third-tier law school. She was in the bottom 50% of her class. But her resume was amazing. She’d been in an all-woman rock band and played with many of the great musicians we all know. The attorney figured, “She’s probably a terrific person, she’s willing to give all that up to be a lawyer, I want to give her a shot.”

So she flew her to the East Coast from California for three days of interviews. Turns out the candidate was a member of about four protected classes, and she was incredibly impressive. But with dozens of Ivy League candidates in the top 10% of their class vying for the job, the attorney realized there was no way she could hire the candidate. So she had to call her up and say, “I’m sorry, but I can’t hire you because you don’t meet the minimum qualifications of this job.”

Predictably, the woman replied, “You knew that when you read my resume, so why did you bring me in? Could it be that when you met me you realized I was a member of several protected classes, and you didn’t like that?” The woman didn’t sue, but if she had it would have been difficult, if not impossible, for the attorney to prove that bias hadn’t influenced her decision.

This is a great example of how a well-intentioned recruiter nearly provoked a lawsuit by making a simple mistake – bringing in an "interesting" job candidate who didn't meet the minimum requirements in a job description.

Here's the bottom line about job descriptions: the more narrowly you define the job, the narrower your pool of qualified candidates, and the less chance you'll be sued for discrimination.

The first thing you must understand is this: If you do job descriptions right, they’ll protect you. If you do them wrong, they’ll get you sued.

So, take the time to carefully think through the description of the job you’re hiring for. Start with the minimum qualifications: Some examples: A four-year nursing degree, 3 years in customer service, a California surveyor’s license, or Microsoft Office Specialist certification.

Lay out the essential functions in the job description: for example, developing energy savings projects in stamping, assembly, machining, and painting process.

Also spell out in the job description any unusual demands of the job: for example, “Must be able to lift 50 pounds,” or “Must be willing to travel 2 weeks per month,” or even “Must be able to work under stress.”

Why do job descriptions protect you? Because by narrowly defining the job requirements, you shrink the pool of candidates who could successfully sue you for discrimination. No judge is going to say you’re guilty of discrimination for not hiring a person who wasn’t even qualified for the job.

Ill-thought-out job descriptions can also sting you AFTER you hire someone. Imagine you forgot to mention certain “administrative duties” as part of the job. You hire a person in a protected class who meets all the requirements. You assign the person some administrative tasks and they say, “That wasn’t in the job description. You’re discriminating against me by giving me this dead-end, low-level work.” What went wrong? The hiring manager didn’t carefully think through in advance ALL the tasks she wanted this candidate to perform.

Here’s a tip: In the “essential functions” portion of every job description, include a bullet point that reads, “Other duties as assigned.” This is reasonable because you can’t always predict exactly what a job will entail. It gives you a bit of wiggle room, and it could protect you in court.

Next post: A story about an employment law attorney who violated her own "minimum requirements" standard and almost got sued.

Every reasonable employer wants to keep employees safe from workplace violence. But does your organization recognize the key part HR should play in the effort to minimize this disruptive and dangerous problem?

Maybe not.

According to the Bureau of Labor Statistics, fewer than 30% of American workplaces have a violence prevention policy in place. And policy, as a rule, is squarely an HR responsibility.

Of course, HR won’t be the only player in a violence prevention effort. You’ll likely be teaming with Security, Facilities Management and/or Safety. The degree of involvement of each function will depend, in part, on the kind of business you’re in.

HR’s fourfold role

HR’s role is fourfold, according to a violence prevention method elaborated by Melissa Fleischer, an employment lawyer and HR consultant.

She calls it PETSPD, for Policy, Emergency planning, Training of employees, Safe-workplace measures and Progressive Discipline.

HR has a significant role in steps 1, 3, 4, and 5. (Somebody else is likely to honcho emergency planning, step 2.)

Let’s look at each of these in turn:

Policy

The first task of a workplace violence policy is to define the term. OSHA, under whose general duty clause employers must provide a safe workplace, recommends including the following in your definition:

verbal harassment (oral or written)

threats

physical and sexual attacks

murder

arson, and

sabotage.

The policy should be inclusive, prohibiting violence by or against employees, customers, clients/patients, and visitors – like friends or family of an employee.

And it should cover not only the workplace itself, but also parking lots, field locations, clients’ homes (where applicable) and travel to and from work assignments.

Key: An effective policy must require that employees report any violence, and direct them to the proper people to make their report. The policy should also bar any retaliation against someone who does report violence.

Training

Insofar as training lies in HR’s domain, you’ll want to instruct both managers and employees about the policy and its reporting provisions.

It’s also a good idea to train on the following topics:

the economic impact of violence on your organization and others, and

the warning signs that someone – within the organization or from outside – may be on the verge of violence. Among these signs are:

an abnormally confrontational attitude

paranoia – “everybody’s out to get me.”

excessive profanity/obscene language

repeated angry outbursts

bragging to co-workers about guns or other dangerous weapons

fantasizing about attacking someone

sudden withdrawal from social contact

physical manifestations of substance abuse

frequent absenteeism, and

radical changes in appearance or hygiene.

Safe-workplace measures

Some of these safety measures have more to do with Facilities Management than HR – such physical modifications as lighting, locks or barriers.

But HR is also involved in this step, by doing the right pre-employment homework and making sure employees go through exit interviews.

Pre-employment musts include background and reference checks, with special attention to whether the applicant has ever been fired or disciplined for workplace violence.

Exit interviews should assess how any terminated employee feels. Unusual hostility is an obvious warning sign. Less obvious may be the risk posed by someone who has resigned. If the person has quit out of frustration and resentment, this could presage violence later. Exit interviews can do double duty, as the interviewer reclaims work ID, keys, access cards and the like.

Progressive discipline

The policy you’ve drafted should make violence punishable by discipline up to and including termination. Applying the policy properly is key.

Progressive discipline may be appropriate where the violence, as broadly defined, hasn’t resulted in actual physical harm – in the case of verbal harassment, for instance.

But don’t hesitate to move immediately to termination when an employee has caused physical or material damage, or poses an immediate threat of such damage.

UNLIMITED-ACCESS FREE TRIAL -- RAPID E-LEARNING LIBRARY FOR COMPLIANCE, LEADERSHIPSHIP AND HR:
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people will actually watch? Our modules, called Quick Takes, are just six to 10 minutes long. Quick Takes are an amazingly effective and
affordable way to train yourself, your HR staff and your managers and
supervisors? Sign up for a risk-free trial to theHR Rapid Learning Center.
Want to see what it's about before you sign up for a
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It was a big change in the FMLA when, two years ago, the government started requiring employers to approve leave for caregivers to family members injured while on military service.

Now, those caregiver leave rights have been expanded. President Obama just signed into law a bill that makes caregiver leave available to employees whose service members were injured for up to five years after their departure from the military.

That's a big shift. Previously, injured service members had to be on active duty with the armed forces, National Guard or reserves before their relatives could take FMLA leave from their jobs to care for them.

Exigency leave

Another change: Originally, employees couldn't take FMLA leave when a family member's pre-existing health condition was aggravated by military service. But now they will be able to do so.

Remember, military caregiver leave provides up to 26 weeks of leave, compared with the usual limit of 12 weeks for non-military FMLA leave.

The new law also liberalizes the other type of FMLA military leave: so-called "qualifying exigency" leave. That's the 12 weeks of leave you have to grant eligible employees when a family member is called to active duty in the Guard or reserves.

Now, employers must also authorize exigency leave when a family member in the regular armed forces is deployed outside the U.S.

DOL will be issuing regulations implementing the new leave provisions, and we'll keep you posted on them when they come out.

UNLIMITED-ACCESS FREE TRIAL -- RAPID E-LEARNING LIBRARY FOR COMPLIANCE, LEADERSHIPSHIP AND HR: Finally, concise, fast-paced online training that your people will actually watch? Our modules, called Quick Takes, are just six to 10 minutes long. Quick Takes are an amazingly effective and affordable way to train yourself, your HR staff and your managers and supervisors? Sign up for a risk-free trial to theHR Rapid Learning Center. Want to see what it's about before you sign up for a trial? Check out just one program from our huge library of content. It's an eight-minute "Quick Take" training module called "Why 80% of Training Doesn't Stick."

It's not great employee relations to stonewall someone's request for a raise. And now it appears it can also raise legal warning flags.

A federal appeals court recently ruled that as far as pay discrimination law is concerned, ignoring an employee’s request for a raise is the same as denying it.

The court was deciding a Pennsylvania case in which a female employee complained she was paid less than comparable men. The court said the employer’s failure to respond to her raise request amounted to a “compensation decision.” And compensation decisions are covered by Title VII, the federal law outlawing sex discrimination.

Long-term consequences

Under the Lily Ledbetter Fair Pay Act of 2007, each allegedly discriminatory paycheck arising from a compensation decision is a separate violation of Title VII.

In practice, this means employees can bring legal action based on an initial pay decision going back years, as long as they file an EEOC charge within 300 days of their last allegedly discriminatory paycheck.

Giving an answer

In light of this decision, HR may want to:

Review your compensation communication policy with line managers so they know what to say when approached for a raise, and

Make sure you have documented, non-discriminatory support for the level of each employee’s pay.

Instead of confining itself to discrimination cases where the stakes are in the millions of dollars – or even the high hundreds of thousands – the agency is now pursuing lots of smaller cases. Settlements may be in the $40,000-$90,000 range. Together, these “popcorn-sized” amounts make a big bowl.

August 2009’s three-week total of $3.9 million included settlements of $44,700; $26,250; $45,000; $84,750; $57,500; and $30,000.

It's not just the moneyHits of this size are unlikely to bankrupt most employers, especially if they’re insured against such liability.

But as Chapman notes, no matter how big a settlement is, the impact is the same in terms of the distraction from normal business, the negative impact on organizational culture, and the bad publicity.

Moreover, a typical settlement of an EEOC lawsuit doesn’t mean only an immediate cash hit. It can also mean major intrusions on the way you do business, for up to five years. Chapman calls these burdens “salt” – on popcorn, or on a wound.

Laundry listHere are a few of the things the EEOC can demand you do as part of a settlement:

provide annual EEO training to your entire workforce

rewrite and distribute EEO policies

hire a full-time diversity officer

consent to surprise visits by an EEOC monitor at any time

submit compliance reports every 30, 60, or 90 days, and

set up an independent, toll-free hotline for bias complaints.

Does HR want to complicate its life like this? Didn't think so. That leaves you with one choice: Make sure you have a strong anti-discrimination policy and let line managers know helping you enforce it is a big part of their job.

UNLIMITED-ACCESS FREE TRIAL -- RAPID E-LEARNING LIBRARY FOR COMPLIANCE, LEADERSHIPSHIP AND HR:
Finally, concise, fast-paced online training that your
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six to 10 minutes long. Quick Takes are an amazingly effective and
affordable way to train yourself, your HR staff and your managers and
supervisors? Sign up for a risk-free trial to theHR Rapid Learning Center.
Want to see what it's about before you sign up for a
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How much time do the supervisors in your company spend actually supervising? If we can believe a new study from McKinsey & Co., maybe not as much time as they should.

McKinsey found that supervisors of a single business unit spent on average just 25-30% of their time working with, coaching and training line employees. (For some it was as little as 10%.) The rest of the time was spent on administration, meetings, special projects, breaks and the like.

The study covered a range of industries, including retail, manufacturing, B2B sales and transportation.

Get your own numbersYou might want to work up your own numbers by quizzing some of your front-line supervisors.

If you don’t like the results, you could start by reviewing – and perhaps modifying – supervisors’ job descriptions. Are they expected to float a boatload of admin stuff? Also, do they have too many employees to effectively watch over? McKinsey suggests a supervisor have no more than about a dozen direct reports.

Sure, the structure of departments and teams isn't exclusively HR's call. But you have a clear interest in ensuring that supervisors aren't so overwhelmed they neglect important stuff like progressive discipline and documentation of behavioral or performance issues.

If your organization is like many others, you don’t like to hang on to the small balances in 401(k) accounts whose holders have left your employ.

In fact, you aren’t legally obliged to keep vested balances under $5,000. If you do, it can be expensive in terms of administrative cost.

Why is this an issue? You’d think that departing employees would have a plan for their 401(k) balances, but this isn’t always the case.

Static Assets

The evidence: Research from the Charles M. Schwab investment company indicates that 43% of 401(k) assets owned by people who left their jobs in the first three months of 2008 still hadn’t been moved a year later.

So what’s your duty to former employees who have left small balances in your 401(k) program that you want to clear out?

Under IRS rules, you have to inform them of their options – which include rolling the money into a new employer’s plan or an IRA, or taking a cash distribution. (The latter option isn’t terribly attractive, because it incurs an immediate 10% tax penalty and the distribution has to be reported as personal income.)

And the best way to inform them – the way that ensures your 401(k) will continue to pass muster with the IRS – has just changed.

New Notices

Recognizing legal changes over the past decade, the IRS has issued new model notices for departed employees who have either traditional 401(k) assets and/or so-called “Roth” – or post-tax – assets. There’s a different notice for each. (The IRS claims these new notices are also simpler.)

To be sure you’re in tax compliance, you may want to download the new notices from the IRS website.

Obviously, a well prepared hiring manager always thoroughly reviews a candidate’s resume before the interview.

So why would you, or one of your line managers, ask the person to talk you through the resume? Aren't you wasting valuable time on repetition?

Nope. The fact is, this exercise can yield a bonanza of information about the candidate’s communication skills.

What to look for

As the candidate talks, consider:

Is the person a good speaker? Does he speak assertively or hesitantly? Does he make eye contact? Also observe body language. Is she sitting with crossed arms or in a relaxed posture? The former may indicate something’s being hidden.

Is the candidate a good presenter? If asked to speak for five minutes does she drone on for 20? Or zip through in two? Does this person organize his thoughts well?

Does the candidate gloss over ambiguous areas of the resume or take the opportunity to explain them? Addressing resume gaps directly shows confidence while avoiding them may signal trouble spots.

Does the candidate speak positively or negatively about former employers and colleagues? Does he or she take sole credit for successes?

Tuning in to the signals

If you listen carefully during the resume recap, you'll often turn up strong "buy" or "avoid" signals that weren't evident from the paper or electronic file you first looked at.

Have you ever found out something important -- positive or negative -- by asking an applicant to speak his or her resume during the interview? If so, we'd love for you to share it. Send us a comment.